Coping with the aftermath of a loved one’s death can be exhausting and stressful. It may be hard to think clearly when grieving, and you may also be swamped with practical concerns like funeral arrangements, caring for children, and figuring out how to continue paying your bills if you were financially dependent on your deceased loved one. As a result, people don’t always have a chance to consider a wrongful death claim right away and may wonder about the statute of limitations.
In South Carolina, you have three years following the date of the person’s death to file a wrongful death claim. Except in rare circumstances, the court will almost certainly refuse to hear your case after the three years is up. If you’re even thinking about filing a wrongful death claim, it can be helpful to speak with an attorney as soon as you feel up to it. You won’t be obligated to do anything, but you will have a chance to learn your options and think them over before the statute of limitations has passed. (Please note that if your loved one’s death occurred in North Carolina, the statute of limitations is even shorter – only two years from the date of the death.) The sooner you schedule a consultation with an attorney, the more time you will have to consider your options.
Here are some other common questions you may have about wrongful death cases:
This is the case in some states, but under South Carolina law, a wrongful death lawsuit can only be filed by the executor or personal representative of the deceased person’s estate. If your relative made a will before they passed, they would have named an executor then. When a person dies intestate (without a will), the probate court will appoint someone for this job, often a surviving spouse, an adult child, or another relative. If an executor hasn’t been chosen yet, you can volunteer to do the job. South Carolina’s requirements for estate executors are fairly relaxed – you must be 18 and of sound mind. A felony conviction will not prevent you from serving as executor.
If another relative has already been named executor and you think they should file a wrongful death claim, it’s a good idea to suggest they speak with a wrongful death attorney. Let them know that they aren’t obligated to file a lawsuit, but should at least find out if they have a strong case before deciding against it.
Any compensation received in a wrongful death claim is earmarked for the deceased person’s surviving family, regardless of what their will says. In other words, the money does not become part of the estate. After legal fees, court costs, and outstanding medical bills for the deceased are paid, the remaining award is distributed in this order:
South Carolina statute S.C. Code § 15-51-10 defines “wrongful death” as a death resulting from the “wrongful act, neglect, or default” of another. This can include intentional acts, medical malpractice, and negligent acts. Negligence is probably the most common basis for a wrongful death claim. This is frequently the situation with car accidents, workplace accidents, and many other situations.
Proving negligence in a wrongful death case requires establishing the following:
Your attorney will discuss potential strategies with you. In general, they will try to prove the above points by using any available evidence – police reports, traffic cam or other video footage, internal communications, GPS or other electronic data, witness testimony, medical records, financial records, etc.
Not necessarily. In fact, many wrongful death cases settle out of court. If your attorney can negotiate a fair settlement with the other party, you may be able to avoid a lengthy and stressful court case. If a settlement offer has been made, your lawyer will explain it to you (assuming you are the executor of the estate) and answer your questions. They may advise you if they believe you can do better or if the offer is not enough to cover all the damages in this case. However, the decision will ultimately be yours. If you reject the offer, your attorney can continue trying to negotiate or make a counteroffer to the other party. Sometimes, an agreement is eventually reached. However, in a few cases, the other party simply won’t agree on a reasonable offer, and in these situations, your case may proceed to trial.
Under South Carolina law, the plaintiff (the person filing the lawsuit) may seek damages that the deceased person could have asked for in a personal injury suit if they’d survived. However, you can also ask for damages that you or the surviving family have personally suffered as a result of the loss. We frequently help clients seek damages for the following:
That doesn’t necessarily mean you don’t have a case. It can definitely be upsetting to think that someone else’s actions led to your loved one’s death, and the justice system isn’t holding them responsible. In fact, this is one motivation many people have for considering a wrongful death case in the first place – they want the responsible party to face consequences for their actions.
But criminal courts require a high burden of proof – you may be familiar with the words “guilty beyond a reasonable doubt.” This is what juries are instructed to do – decide if the accused is guilty beyond a reasonable doubt. If they can’t conclude that, then they must find the defendant not guilty.
As a result, prosecutors have to think carefully about whether they have enough evidence to convince a jury that the defendant is guilty beyond a reasonable doubt. In many cases, for a variety of reasons, there may not be enough evidence. Prosecutors don’t have the time and resources to pursue every case, so they have to let go of those they have a poor chance of winning.
But no one goes to jail in a wrongful death suit, so the burden of proof is much lower. The jury only has to find the defendant to be more likely guilty than not guilty. If the evidence leans slightly in favor of the defendant being guilty, that’s good enough to find in the plaintiff’s favor. For this reason, many people pursue successful wrongful death claims even if the defendant was not charged in criminal court. For example, the prosecution may feel that there isn’t enough evidence to pursue vehicular manslaughter charges against someone who caused a car accident that killed another person. But there may be enough evidence to find that driver negligent in a wrongful death suit. Similarly, a wrongful death case may be successful even if the defendant was charged in criminal court and found not guilty. Again, less evidence is needed to prove negligence.
Your wrongful death attorney will answer any questions you have, and explain the potential avenues you have for seeking compensation. In some instances, there may be more than one potential defendant.
If you have lost a loved one and believe another party’s negligence was the cause, there’s no doubt you are sad, stressed, and maybe confused about what will happen in the future. At Auger & Auger, we aim to take as much of that load as possible off your shoulders so you can spend time with your family and work through your grief.
After your free consultation, we will do what we can to keep you apprised of the legal proceedings as much or as little as you’d like. We’ll take care of the paperwork, talk to experts and witnesses, and negotiate with the insurance companies on your behalf. We have been helping wrongful death victims get the compensation they deserve for more than 26 years, and we know what it takes to win your case.
There is no fee unless we win your case, and you aren’t obligated to do anything. Call us at (855) 969-5624 or contact us online for a free, no-obligation consultation with an experienced wrongful death attorney. Our legal team is always here to take your call and answer your questions.